Citation Nr: 21009790 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 17-30 903 DATE: February 23, 2021 ORDER New and material evidence has been presented, and the claim of entitlement to service connection for fibromyalgia is reopened. Service connection for an acquired psychiatric disorder is granted. REMANDED Entitlement to service connection for fibromyalgia is remanded. Entitlement to service connection for vertigo is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to service connection for ovarian cysts is remanded. Entitlement to service connection for lymphadenopathy is remanded. Entitlement to service connection for a lumbar spine disorder with radiculopathy is remanded. Entitlement to a rating in excess of 10 percent for a right knee disability is remanded. Entitlement to a total disability rating based on individual unemployability as a result of service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. A January 2004 rating decision denied reopening the service connection claim for fibromyalgia; the evidence received since the January 2004 rating decision includes evidence that relates to an unestablished fact necessary to substantiate the service connection claim for fibromyalgia, is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the claim. 2. The Veteran’s acquired psychiatric disorder is due to her active service. CONCLUSIONS OF LAW 1. New and material evidence has been submitted, and the Veteran’s service connection claim for fibromyalgia is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for service connection for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from November 1973 to November 1974. In connection with this appeal, the Veteran testified at a hearing before the undersigned Veterans Law Judge in November 2020. A transcript of that hearing is of record.   Reopening Claim New evidence is defined as evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). Moreover, in Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010), the U.S. Court of Appeals for Veterans Claims (Court) clarified that the phrase “raises a reasonable possibility of substantiating the claim” is meant to create a low threshold that enables, rather than precludes, reopening. Specifically, the Court stated that reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. The Veteran previously filed a request to reopen a service connection claim for fibromyalgia in June 2003, which was denied by a January 2004 rating decision. She did not submit any new and material evidence pertaining to this issue within a year of the rating decision, meaning that the January 2004 rating decision became final. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. At the time of the January 2004 rating decision, the evidence of record included the Veteran’s STRs, VA treatment records, and private treatment records. The RO found that the evidence submitted was not new and material and denied reopening the claim. In April 2013, the Veteran filed a request to reopen her previously denied service connection claim for fibromyalgia. She asserts that this condition is due to her active service. Evidence received since the January 2004 rating decision includes additional VA treatment records, private treatment records, and the Veteran’s testimony at the November 2020 Board hearing. This evidence is presumed credible for the limited purposes of reopening the claim, and when that is done, the new information is considered to be material and is therefore sufficient to reopen the previously denied claim. 38 C.F.R. § 3.156(a); Shade, 24 Vet. App. 110. Accordingly, the claim is reopened. Service Connection In order to establish entitlement to service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease of injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The Veteran’s filed a service connection claim for an acquired psychiatric disorder, to include depressive disorder and anxiety disorder, which was denied by a December 2013 rating decision. She asserts that her acquired psychiatric disorder is due to her active service. At the November 2020 Board hearing, she testified that she experienced military sexual trauma two times during her active service. She testified that she began having depression, anxiety, and crying spells. If a posttraumatic stress disorder (PTSD) claim is based on in-service personal assault, evidence from sources other than the veteran’s service records may corroborate the veteran’s account of the stressor incident. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. 38 C.F.R. § 3.304(f)(5). The Veteran’s STRs show that in June 1974, she was falling asleep in class. In September 1974 she requested separation from active service due to “Conscientious Objector” status. She reported being depressed during her active service. At a psychiatric interview, the examiner reported there was no evidence of any psychiatric condition which would preclude separation. Her request for a separation was granted in November 1974. The Veteran’s treatment records show that in August 1995, she was diagnosed with adjustment disorder with depressed mood. At an April 2013 treatment visit, she reported that she was sexually assaulted during her active service. In April 2017, the Veteran was afforded a VA examination. After reviewing the Veteran’s claims file, interviewing the Veteran, and conducting an examination, the examiner diagnosed the Veteran with PTSD. The examiner reported that the Veteran’s current symptoms were consistent with sexual trauma. The examiner reported that there was an evaluation noting that the Veteran had no psychiatric condition that would preclude an administrative discharge. The examiner also reported that this statement was neutral for whether she was completely free of psychiatric conditions. In May 2020, the Veteran underwent a Psychological Evaluation with Dr. Amir Niazmand. After reviewing the Veteran’s claims file, interviewing the Veteran, and conducting an examination, Dr. Niazmand diagnosed the Veteran with PTSD due to her reported military sexual trauma. Dr. Niazmand also opined that the Veteran’s PTSD played a role in the development of her depressive disorder. The Veteran’s STRs show that she experienced sleeping difficulty and depression during her active service. She also requested a separation from service within a year of her entrance into active service. These findings, when combined with the Veteran’s credible testimony at the Board hearing, the findings of the VA examiner, and the opinion of Dr. Niazmand, result in a finding that the evidence is at least in equipoise that the Veteran’s acquired psychiatric disorder is due to her active service. As such, the criteria for service connection for an acquired psychiatric disorder have been met and the claim is granted. REASONS FOR REMAND At the November 2020 Board hearing, the Veteran testified that she started receiving Social Security Administration (SSA) disability benefits. Unfortunately, there are no SSA records on file. Where VA has notice that the Veteran is receiving disability benefits from the SSA, and that records from that agency may be relevant, VA has a duty to acquire a copy of the decision granting Social Security disability benefits, and the supporting medical documents on which the decision was based. Here, the representative has indicated that relevant records from the SSA are outstanding. A remand is necessary to obtain any available relevant SSA records. 38 C.F.R. § 3.159(c)(2). Regarding the Veteran’s service connection claim for fibromyalgia, at the November 2020 Board hearing, the Veteran testified that she began having symptoms after she received inoculations with a jet gun injector in service. She testified that after she received inoculations, her glands started to swell. Her STRs show that she started to treat for swollen glands in February 1974. In July 1974, she was treated for tendonitis. In September 1974, she had joint swelling. Her treatment records after her separation from service show that she was diagnosed with fibromyalgia in 1988. As such, a remand is necessary to afford the Veteran a VA examination to obtain an opinion on the etiology of any current fibromyalgia. Regarding the Veteran’s service connection claim a lumbar spine disorder with radiculopathy, at the November 2020 Board hearing, the Veteran testified that her lumbar spine disorder was secondary to her service-connected right knee disability. While the Veteran was afforded a VA examination in November 2013, the VA examiner did not offer an opinion regarding secondary service connection. As such, a remand is necessary to afford the Veteran a new VA examination with opinions on the etiology of the Veteran’s lumbar spine disorder with radiculopathy. Regarding the Veteran’s increased rating claim for her right knee disability, she was last afforded a VA examination in November 2018. At the November 2020 Board hearing, the Veteran testified that she used a cane during the previous two years, but now she used a walker constantly and was looking for a scooter. She testified that her arthritis has affected her mobility. As such, the Veteran’s testimony shows that her right knee disability has increased in severity and she should be afforded a new VA examination to assess the current severity of her right knee disability. Regarding the Veteran’s claim for a TDIU, the issue of entitlement to a TDIU is inextricably intertwined with the adjudication of the other remanded issues, and it too will be remanded. The matters are REMANDED for the following action: 1. Obtain from the SSA a copy of any decision(s) awarding the Veteran disability benefits as well as copies of all relevant medical records regarding the Veteran’s fibromyalgia, vertigo, ovarian cysts, lymphadenopathy, lumbar spine disorder, and right knee disability. 2. Obtain all outstanding VA and/or private medical records that pertain to the Veteran’s fibromyalgia, vertigo, ovarian cysts, lymphadenopathy, lumbar spine disorder, and right knee disability. 3. Then, schedule the Veteran for a VA examination to determine the etiology of her fibromyalgia. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that the Veteran’s fibromyalgia either began during or was otherwise caused by the Veteran’s active service. Why or why not? The examiner should comment on the clinical significance, if any, of the use of a jet gun injector and the Veteran’s complaints of tendonitis and joint swelling during her active service. 4. Schedule the Veteran for a VA examination to determine the etiology of any lumbar spine disorder. The examiner should offer the following opinions: a. Is it at least as likely as not (50 percent or greater) that any lumbar spine disorder was caused by a service-connected disability, to include the Veteran’s right knee disability? Why or why not? The examiner should discuss the lay statements of the Veteran regarding the etiology of her lumbar spine disorder. b. Is it at least as likely as not (50 percent or greater) that any lumbar spine disorder was aggravated by a service-connected disability, to include the Veteran’s right knee disability? Why or why not? If aggravation is found, the examiner should identify the baseline level of severity of any lumbar spine disorder before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of any lumbar spine disorder. 38 C.F.R. § 3.310 5. Schedule the Veteran for a VA examination to determine the current severity of her service-connected right knee disability. In so doing, the examiner should ensure to the extent possible, consistent with 38 C.F.R. § 4.59, that the report include results of active and passive motion, in addition to the results following repetitive motion testing. If it is not possible to complete any of the range of motion testing described above, it should be explained 6. Adjudicate the issue of entitlement to a TDIU. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Berryman, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.